Question- discuss the rule of “pro-rata abatement” followed in the Hanafi school while

determining the limits of testamentary power with necessary illustration. // give a overview
of the testamentary power of a Hanafi Muslim with examples. What do you understand by
“obligatory bequeath. Discuss the rules of obligatory bequeath adopted in different
countries. Make a comparison between the rule of obligatory bequeath and the rule of
representation as adopted in Bangladesh. Discuss the limits of testamentary power.

Concept of will under Muslim Law

A Will or Testament or Wasiyat has been defined as “an instrument by which a
person makes disposition of his property to take effect after his death.”
The distinguishing feature of a Will is that it becomes effective after the death of the
testator and it is revocable.

Unlike any other disposition (e.g. sale or gift), the testator exercises full control over
the property bequeathed till he is alive: the legatee or beneficiary under the Will
cannot interfere in any manner whatsoever in the legator's power of enjoyment of
the property including its disposal or transfer (in that case the Will becomes
revoked).

Object and Significance of Wills

The object of Wills according to the tradition of the Prophet is to provide for the
maintenance of members of family and other relatives where they cannot be
properly provided for by the law of inheritance.

At the same time the prophet has declared that the power should not be exercised to
the injury of the lawful heirs.

A bequest in favour of an heir would be an injury to the other heirs as it would

reduce their shares and would consequently induce a breach of the ties of kindred.

Thus the policy of the Muslim law is to permit a man to give away the whole of his
property by gift , but to prevent him, except for one third of his estate, from
interfering by Will with the course of the devolution of property according to the laws
of inheritance.

A Will offers to the testator the means of correcting to a certain extent the law of
succession, and enabling some of those relatives who are excluded from inheritance
to obtain a share in his property, and recognizing the services rendered to him by a
stranger.

Formality of a Will
As a general rule, no formality is required for making a Will (Abdul Manan Khan v
Mirtuza Khan).
No writing is necessary to make a Will valid, and no particular form, even verbal
declaration is necessary so long as the intention of the testator is sufficiently
ascertained. Where the Will is reduced to writing it is called a ‘Wasiyatnama.’ If it is
in writing it need not be signed. It does not require attestation and if it is attested
there is no need to get it registered.
Instructions of the testator written on a plain paper, or in the form of a letter, that in
clear cut terms provide for distribution of his property after his death would
constitute a valid Will (Abdul Hameed V.Mahomed Yoonus).
In case, a Will is oral, the intention of the testator should be sufficiently ascertained.
In comparison to a Will in writing which is easier to prove, the burden to prove an
oral Will is heavy.

Requisites of A Valid Will

# The testator (legator) must he competent to make the Will.
# The legatee (testatrix) must be competent to take the legacy or bequest.
# The subject (property) of bequest must be a valid one (Qualitative requisite).
# The bequest must be within the limits imposed on the testamentary power of a
Muslim (Quantitative requisite).

Testator and his Competence (Who can make Will?)

Every major Muslim (above 18 years) of sound mind can make a Will.

The age of majority is governed by the Indian Majority Act, 1875, under which, a
person attains majority on completion of 18 years (or on completion of 21 years, if
he is under supervision of Courts of Wards).

Thus, the testator must be of 18 or 21 years, as the case may he, at the time of
execution of the Will.

At the time of execution of a Will (i.e. when it is being made), the testator must be of
sound mind.

Under Muslim law, the legator must have a perfectly ‘disposing mind’ i.e. the legator
must be capable of knowing fully the legal consequences of his activities not only for
a brief period when the declaration was made, but much after that.

A Will that is executed in apprehension of death is valid, but under the Shia law, if a
person executes any Will after attempting to commit suicide, the Will is void.

A minor is incompetent to make a Will (such a Will is void) but a Will made by minor
may subsequently be validated by his ratification on attaining majority.

A Will procured by undue influence, coercion or fraud is not valid, and the court
takes great care in admitting the Will of a pardanashin lady. Thus, a Will must be
executed by a legator with his free consent.

The legator must be a Muslim “at the time of making or execution of the Will.” A Will
operates only after the death of the legator; before his death, it is simply a mere
declaration on the basis of which the legatee may get the property in future.

If a Will has been executed by a Muslim who ceases to be a Muslim at the time of his
death, the Will is valid under Muslim law.

Also, the Will is governed by the rules of that school of Muslim law to which the
legator belonged at the time of execution of the Will. For example, if the legator was
a Shia Muslim at the time when he wrote the Will, only Shia law of Will is made
applicable.

Legatee and his Competence (To whom Will can be made?)

Any person capable of holding property (Muslim, non-Muslim, insane, minor, a child
in its mother's womb, etc.) may be the legatee under a Will. Thus, sex, age, creed or
religion is no bar to the taking of a bequest.
Legatee (including a child in its mother's womb) must be in existence at the time of
making of the Will. Thus, a bequest to a person unborn person is void.

A bequest may be validly made for the benefit of ‘juristic person’ or an institution
(but it should not be an institution that promotes a religion other than the Muslim
religion viz. Hindu temple, Christian church etc.).

A bequest for the benefit of a religious or charitable object is valid. It is unlawful to

make a bequest to benefit an object opposed to Islam e.g. to an idol in Hindu temple,
because idol worship is opposed to Islam.

No one can be made the beneficial owner of shares against his will. Therefore, the
title to the subject of bequest can only be completed with the express or implied
consent of the legatee after the death of the testator. The legatee has the right to
disclaim.

A person who has caused the death of the legator cannot be a competent legatee. A
Will operates only after the death of a legator, therefore, a greedy and impatient
legatee may cause the legator's death to get properties immediately. However, it is
also immaterial whether the legatee knew about him being a beneficiary under the
Will or not.
Joint Legatees
A bequest may be made to two or more legatees jointly, and when no specific share
of any of them has been mentioned, the property is divided equally amongst all the
legatees. But, where the legator himself has specified the respective shares of the
legatee then, each legatee would get the shares allotted to him.

Subject Matter of Will (Bequeathable Property) and its Validity

The testator must be the owner of the property to be disposed by will; the property
must be capable of being transferred; and, the property must he in existence at the
time of testator's death, it is not necessary that it should be in existence at the time
of making of Will.

Any kind of property, movable or immovable, corporeal or incorporeal, may be the

subject-matter of a Will.

In order to be a valid bequest the grant in the bequeathed property must be

complete or absolute. A bequest has to be unconditional. If any condition is attached,
say the legatee shall not alienate the subject of legacy, the condition is void and the
bequest is effective without condition.

Likewise, a bequest in futuro is void, and so does a contingent bequest.

However, an alternative bequest of property (i.e. to one or failing him to the other
person) is valid. Thus, when the testator willed that his son if existing at the time of
his death will take the bequest, if not in existence his son’s son will, and failing both
it will go to a charity, was held valid (Advocate General V. Jimbabai)

Creating of ‘life estate’ is not permissible under Sunni law; the bequest of a life
estate in favour of a person would operate as if it is an absolute grant.
Under Shia law , however, the bequest of a life estate in favour of one and a vested
remainder to another after his death is valid.
Testamentary Power and its Limits (Bequeathable one-Third)
A Muslim does not possess an unlimited power of making disposition by Will.
There are two-fold restrictions on the power of a Muslim to dispose of his property by
Will, which are in respect of the person in whose favour the bequest is made, and as
to the extent to which he can dispose of his property.

This is obvious, because the object behind this restriction is to protect the interests
of the testator’s heirs.
# No Muslim can make a bequest of more than one-third of his net assets after
payment of funeral charges and debts. If the bequeathed property exceeds one-
third, the consent of other heirs is essential (Sunni and Shia laws).

A bequest of entire property to one heir to the exclusion of other heirs is void -
Husaini Begum V. Mohd. Mehdi

Where the heirs refuse to give their consent, the bequest would be valid only to the
extent of one-third of the property and the rest of the two-thirds would go by
intestate succession.
# In respect of bequest of one-third to an heir, the consent of other heirs is required
in Sunni law, but not in Shia law. In case of a non-heir (stranger) the consent of heirs
is not required in both.
# The above rule of bequeathable one-third will not apply to a case where the
testator has no heir. The right of Government to take the estate of an heirless person
will not, in any way, restrict the right of a person to make a disposition of his
property as he likes. Thus Government is no heir to an heirless person.
# A bequest made for pious purposes is valid to the extent or one-third of the
property, both under Sunni as well as Shia law.
# The ‘1/3rd limit’ rule will not apply if a Muslim marries under the Special Marriage
Act, 1954, because then he has all the powers of a testator under the Indian
Succession Act, 1925.

Consent of Heirs

Consent must be of heirs and not of presumptive heirs.

Whether a person is an heir or not will be determined at the time of the testator’s
death because a person who is an heir at the time of making the Will not remain an
heir at the time of testator’s death and vice versa.
Consent by heirs under Sunni law, shall be given only after death of the testator,
while in Shia it may be before or after the death of the testator.
Consent must be definitive, whether express or implied by positive conduct, and
mere silence on the part of an heir will not amount to implied consent.
The attestation of the Will by the heirs and acquiescence in the legatee taking
possession of the property has been held to be sufficient consent.
In cases where only some of the heirs give their consent the shares of those
consenting will be bound, and the legacy in excess is payable out of the consenting
heir’s share. The consent of heirs who are insolvent has been held effective in
validating a bequest.

Consent once given cannot be later rescinded. Similarly, consent cannot be given
after an heir has previously repudiated it.

Bequest to Heirs and Non-heirs

Where the testator makes a bequest to heir as well as non-heir by the same legacy,
in absence of the consent of heirs, the legacy will not be invalid in its entirety but will
take effect with respect to non heirs. The rule is that as far as possible, the Will, will
be given the maximum effect that it is capable of.

For example, if the testator bequeaths his total property to an heir and a non-heir,
without the heirs giving the consent, the non-heir will take one-third of the property
and the rest of the two-thirds will go to the heirs of the testator by inheritance -
Muhammad V. Aulia Bibi.

Revocation of Will
Muslim law confers on a testator unfettered right to revoke his will. A Muslim testator
may revoke, during his life-time, any Will made by him expressly or impliedly.

Thus, if he sells, makes gift of the subject of bequest or deals with the same in any
other manner like constructing a house on the piece of land bequeathed earlier,
would implied revocation.

For example, where the testator gives land to his friend under a Will but a year later
gifts the same to his daughter, the bequest in favour of the friend is automatically
revoked.

Where a testator makes a Will, and by a subsequent Will gives the same property to
someone else, the prior bequest is revoked. But a subsequent bequest (though of
the same property) to another person in the same Will does not operate as a
revocation of prior bequest, and the property will be divided between the two
legatees in equal shares.

It is not necessary that for revoking an earlier will, another will must be made. A Will
can be revoked by a simple and clear declaration to that effect or by a formal deed
of cancellation or revocation of Will.

Death of Legatee before Operation of Will (Lapse of Legacy)

Under Sunni law where before the Will can operate, the legatee dies, the bequest will
lapse and the property bequeathed would remain with the testator and on his death
will go to his heirs in absence of any other disposition by him.
 In the name
of Allāh, Most Gracious, Most Merciful
 GENERAL
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1. THE CONTINUING PROBLEM OF MOOON SIGHTING
IN THE U.K. : A SOLUTION ON THE HORIZON?
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4. ARE STUDENT LOANS IN THE U.K. HARĀM?
5. Things That Break the Fast (Al-Mufaṭṭirāt)
6. What is Islām / What is a Muslim
7. Purpose of life in Islām
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1. Muslim Matrimony for Professionals FIW-MMP©
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 ISLĀMIC WILL
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1. My Will and Organ Donation
2. TESTAMENTARY FORMALITIES
3. BEYOND AN ISLAMIC WILL
4. USE OF THE COMMON LAW TRUST IN ISLAMIC
WILLS
5. Developing a Schedule of Inheritance for Islāmic
Wills
6. Islamic Will Practical Guide
7. Why is an Islāmic Will so important for Muslims
 8. ISLĀMIC WILLS: LEGAL INSTRUMENTS USED IN
ESTATE PLANNING
9. Is FIW© Suitable for Writing Your Will
10. AL SIRĀJIYYAH (English)
11. Importance of writing a Will
12. What is an Islāmic Will
13. Importance of an Islāmic Will
14. Islāmic Will in non-Islāmic states
15. Islāmic law of Inheritance
16. Islāmic law of Wills
17. Testamentary Trusts & Testamentary Awqāf
18. Inheritance of Orphaned Grandchild
19. DISINHERIT/ REPUDIATION (ʿĀQ)
20. My Will and Organ Donation
21. Concept of Death, Time of Death and
Inheritance
22. Buy book on Islāmic Laws of Wills and
Inheritance
23. Write your Islāmic Will online FIW©
24. Law of Intestacy (England & Wales)
25. Law of Intestacy (England & Wales)
26. Shares in the Qurʾān add up to more than
one!
 WHAT TO DO WHEN SOMEONE DIES
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1. OPT-OUT ORGAN DONATION LAW FAQs
2. Organ Donation Presumed/ Deemed Consent
3. Does brain death equate with actual death
4. THE CONCUNDRUM OF ORGAN DONATION
5. Distributing the Deceased's Estate
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17. Cost of a Funeral in Different UK Regions
18. Who Pays the Funeral Expenses
  INFO FOR HEALTHCARE PROFESSIONALS
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1. Things That Break the Fast (Al-Mufaṭṭirāt)
2. Islāmic Bioethics : Compilation of Fatāwa
3. Medical Interventions and Their Effect on Validity
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5. Fluenz® nasal flu vaccine : Halāl or Harām
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9. Is brain death actual death: an Islāmic perspective
 PRESENTATION SLIDES
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1. The Deceased Organ Donation Debate in the U.K.
2. Islāmic Wills (I) at CMA 2017
3. Maths for Mirāth
4. Succession in Diverse Communities at STEP
Canada 2016
5. Islāmic Law of Inheritance Overview at AML 2014
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Inheritance of Orphaned Grandchild
‫ِب ۡس ِم الل ِه ال َّر ۡح ٰم ِن ال َّر ِحۡي ِم‬
In ancient Arab society, precedence was given to the preservation
and interests of the tribal unit, this can be evidenced by the pre-
Islāmic laws of inheritance. With the advent of Islām and Islāmic
inheritance law, the ancient Arab tribal loyalties were replaced
with the family unit.
However, over time the socio-economic structure of the family
has changed such that the larger family unit has become less and
less meaningful to the extent that the closeness of family ties of
the past have been replaced by unrestrained individualism.
Paternal uncles who were once expected to look after the
interests of their orphaned nephews and nieces no longer feel any
obligation to do so.
With this changing functional family unit many Muslim states
have tried to modify the traditional Islāmic inheritance law with
the aim of providing for the orphaned grandchild and, in effect,
try to strengthen ties within the immediate family. The Muslim
states have adopted two differing systems: the obligatory bequest
and inheritance by representation.
In traditional Islāmic law of inheritance, “a nearer in degree
excludes the more remote” as far as the male agnates (ʿasbāt)
are concerned. This fundamental principle, which is accepted by
all the Islāmic schools of jurisprudence (fiqh), means that children
of a predeceased son or daughter are totally excluded from
inheriting the property of their grandfather or grandmother in the
presence of a surviving son.

The Obligatory Bequest in Favour of the Orphaned

Grandchild
The system of “obligatory bequest” has been adopted by Sudan
(Judicial circular no. 53, 1945), Egypt (Egyptian Will Act No.
71/1946) as well as by Syria, Jordan, Tunisia, Morocco, Algeria,
Libya, Iraq and Kuwait. The obligatory bequest law is not the
same in all the Middle East countries. The fullest development of
the system of the obligatory bequest is to be found in the
Egyptian law of 1946 which applies to both the predeceased sons’
children and the predeceased daughters’ children as well as the
children of an agnatic grandson or granddaughter, however low
soever. The Egyptian 1946 law states that the propositus is
obligated to make a bequest in favour of grandchildren of any
predeceased son or daughter who are not legal heirs, provided
that the bequest does not exceed the limit of one-third or the
equivalent of the share of the predeceased son or daughter,
whichever is less. If the grandfather fails to make such a bequest
the law court will act if he had and such a bequest will have
priority over any other bequests the testator may have made. The
law of obligatory bequest only comes into operation if the
orphaned grandchildren are not legal heirs under traditional
Islāmic law. If there are two or more grandchildren entitled to the
obligatory bequest, the male will receive twice as much as the
female.
Despite careful wording the “obligatory bequest” in Egyptian law
has been interpreted in 3 different ways (the Court method, the
Mufti's method and Abū Zahra’s method).

Inheritance by Representation
Pakistan introduced a different system to provide for the
orphaned grandchild. The Muslim Family Laws Ordinance of 1961,
section 4, states: “In the event of the death of any son or
daughter of the propositus before the opening succession, the
children of such son or daughter, if any, living at the time the
succession opens, shall per stirpes receive a share equivalent to
the share which such son or daughter, as the case may be, would
have received if alive.”
This is, in essence, the principle of representation giving the
orphaned grandchild the right to inherit by stepping into the
shoes of his/ her parent. Traditional Islāmic inheritance law rejects
the principle of representation. According to the ḥādīth narrated

by ʿAbd Allāh Ibn ʿAbbās ( ): The Prophet (

) said, “Give the farāʾid to those who are entitled to receive it.
Then whatever remains, should be given to the closest male
relative of the deceased.” (Ṣaḥīḥ al-Bukhārī)
The supporters of the reform argued, firstly, that there is no clear
verse in the Qurʾān or authoritative hadith that excludes the
orphaned grandchild from inheriting his/ her grandfather's
property; secondly, since the paternal grandfather can represent
the father in his absence, the grandchild should be able to
represent his/ her parent on the same basis; thirdly, the Qurʾān
and ahadith have given great importance to the welfare of the
orphan, so any legislation which goes against this principle is
against the spirit of Islam. Some supporters of the reforms even
tried to re-interpret the Qurʾān ayah 4:11 to provide justification
for the reforms. Other supporters, such as Kemal Faruqi, argued
that the exclusion of the orphaned grandchild is not based on the
Qurʾān but on the classical interpretation of the above-
quoted hadith.
However, the arguments of the supporters of the section 4
reforms are not convincing and may be said that they, in fact,
show a misunderstanding of the traditional Islāmic law. A great
number of scholars have criticised the reforms.
The opponents of the reforms argue, that firstly, the
Qurʾān assigns inheritance shares to those who are alive at the
time of death of the propositus, whereas, the section 4 reforms
seek to assign shares to those who are already dead. Secondly,
what is the Qurʾānic basis for only selecting the orphaned
grandchildren for representation, why not other legal heirs?
Thirdly, inheritance in Islām is not based on need but on legal
right. Other scholars, judges, and academics, including non-
Muslims, have put forward other arguments against the reforms
with examples to illustrate their points.
The proponents of the reforms who cite the example of the
paternal grandfather stepping into the shoes of the father to
support their argument must realise that this is, in fact, a form of
substitution and not representation. The paternal grandfather is
the nearest male ascendant in the absence of the father in the
same way as the son’s son will substitute the son in his absence
being the nearest male descendant. Other supporters of the
reform have cited examples such as the father does not exclude
the paternal grandmother and the daughter does not exclude the
son’s daughter in inheritance as a justification to allow the
grandchildren to inherit in the presence of a son. Again, this is an
oversight of the traditional Islāmic law “a nearer in degree
excludes the more remote” is applicable to the male agnates
(ʿasbāt); the examples cited by the supporters seem to miss this
crucial point as their examples involve Qurʾānic heirs.
This inheritance by representation granted to the orphaned
grandchild by the 1961 Ordinance (Pakistan) radically disturbs the
traditional Islāmic inheritance law of priorities. It places all
grandchildren in the circle of close relatives by giving them right
of inheritance, the position of the daughter’s daughter who is the
distant kindred class in traditional Islāmic law, who would
normally not inherit at all, has been raised to that of a Qurʾānic
heir where a share in inheritance is guaranteed. The son’s
daughter (inheriting in the shoes of her father) will not only
exclude all brothers and sisters but also inherit twice the share of
the daughter.
Despite careful wording the Pakistani Muslim Family Laws
Ordinance of 1961, section 4, the application of the law was
challenged successfully in the Lahore High Court, Kamal Khan v
Zainab, 1983 PLD Lahore 546. The judge said, “The legislature
never intended to give greater benefit to the grandchildren of a
predeceased parent than would have been his due, if the parent
was alive.”
The customised Islāmic Will generated on this website allows the
user (testator) to choose any of the four traditional Islāmic
schools of jurisprudence (fiqh) to be applied to their Will.
Furthermore, if the user (testator) wishes to make a bequest in
favour of any orphaned grandchild, just in case, then this is
accomplished by way of a carefully worded bequest which the
user (testator) can opt to include in his Will.
If you wish to create your free customised Islāmic Will click here.

Dr. A. Hussain

Author of The Islamic Law of Wills and Inheritance


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Under Shia law, the legacy will lapse only if the legatee dies without leaving an heir
or if the testator, after the death of the legatee, revokes the Will. However, if the
testator even after the death of the legatee does not revoke the Will, on the date of
operation of the Will, the benefit under it will pass to the heirs of the legatee.
Sunni Law Shia Law
A bequest to a child in womb is valid if It is valid even if born in the longest
born within 6 months. period of gestation i.e. 10 months.
Rateable abatement of legacy applies. Rule of chronological priority applies.
Heir's consent should be given after the Heir's consent may be given before or
death of testator. after the death of testator.
Acceptance of the legacy before the Acceptance of the legacy during the
testator’s death is of no effect. testator’s life time is lawful.

Abatement of Legacies
Rateable Abatement
Where a bequest of more than one-third of property is made to two or more persons
and the heirs do not give their consent, the shares are reduced proportionately to
bring it down to one-third, or in other words, the bequest abates rateably. The above
rule applies in Sunni law only.

Chronological Priority
According to Shia law, if several bequests are made through a Will, priority would be
determined by the order in which they are mentioned or by the point of time. Thus,
legacies take effect in order of preference.

The legatee mentioned first in the will gets his share as mentioned under the will.
After giving his share, the remaining goes to the second legatee. If there still
remains something, it goes to the third and as soon as the one-third property is
exhausted, the distribution is stopped and the next legatee does not get anything.
Thus, here a legatee either gets his share or gets some share or gets nothing at all.

o Child in mother’s womb

A child in a mother’s womb is treated as a living person and thus, is a competent legatee
under Islamic law under two conditions. Firstly, he must be in existence in the mother’s
womb at the time of declaration of the Will. Secondly, the child must be born alive within six
months from the date of execution of Will under Sunni law and within 10 months under Shia
law.

o Murderer of Legator
A Will comes into effect only after the death of legator. Thus there is a possibility that an
avaricious and impatient legatee may cause the death of the legator in order to grab the
property as soon as possible.
A legatee kills or causes the death of the legator either intentionally or unintentionally is not
allowed to take the Will and generally disentitle to take the property. However, under Shia
law, if a legatee causes the death of the legator either unintentionally, negligently or
accidentally, then he is qualified to take the property and the Will is treated as a valid Will.